KC Category – Space Resources

Space Resources

List of contributors

Tanja Masson-Zwaan

Mark Sundahl

Anne-Sophie Martin

Dimitra Stefoudi

Michelle Hanlon

Mejía-Kaiser Martha

INTRODUCTION

by Tanja Masson-Zwaan

In recent years the legal aspects of commercial space resource utilisation have beenincreasingly addressed by space lawyers. The debate is pushed by industry initiatives, an unclear international legal framework and the adoption of several national laws. Although the day may still be far off that space natural resources can be used for commercial gain, it is important to prepare a clear, transparent and predictable legal framework. This framework should provide a balance among the interests of all stakeholders, in a fair and equitable manner. I applaud the IISL Knowledge Constellation for providing a forum for this important topic. The Institute fulfills a major role by contributing the legal insights of its membership to this debate.

by Mark Sundahl

As we move into a new era of exploration of the Moon and Mars, the need to extract and utilize natural resources will be necessary. The costs of transporting from the Earth the water, oxygen, and fuel needed to sustain a permanent human presence are prohibitive. In light of this reality, those who oppose resource extraction entirely are inevitably on the wrong side of history.

The first hurdle faced by emerging plans to extract natural resources was the question of whether resource extraction was permitted under the Outer Space Treaty. The Building Blocks drafted by the Hague International Space Resources Governance Working Group proceeded on the understanding that resource extraction is permissible provided that it “is carried out in accordance with the principle of non-appropriation under Article II OST.” This approach strikes a fair balance by recognizing that resource extraction is permitted, while still respecting the ruleagainst national appropriation. A consensus seems to have emerged that resource extraction and utilization is permitted under existing international law (including signatories of the Moon Agreement). One expression of this consensus is seen in the domestic legislation of the United States, Luxembourg, the United Arab Emirates, and Japan that provide for the licensing of resource extraction missions. NASA’s Artemis Accords have built another block of consensus among the eight signatories who are joining NASA’s lunar program.

The international community now needs to determine how we can come to a common understanding about how to conduct space resource activities in adherence with international law, most importantly with respect to (i) the duty to exercise due regard to the interests of other states, (ii) the duty to consult if there is a possibility of harmful interference, and (iii) the determination of liability.

A number of international initiatives are undertaking discussions on these issues. Most importantly, a general exchange of views regarding resource utilization will be held at the next meeting of the Legal Subcommittee of COPUOS. Hopefully this will lead to the establishment of a working group of the LSC that could address not only resource extraction, but other issues that are of pressing importance as we return to the Moon (such as reforming registration practices to accommodate lunar missions).

Despite the cancellation of the 2020 COPUOS meetings due to COVID-19, a number of international fora have conducted online meeting to maintain the international discussion ofissues concerning future lunar activity, such as space resources. These initiatives include the Moon Village Association’s Global Expert Group on Sustainable Lunar Activity (GEGSLA), the Open Lunar Foundation’s Moon Dialogs, For All Moonkind’s work on a lunar registry, and the 2020 Symposium on Returning to the Moon hosted by the Global Space Law Center. These initiatives have recognized that there is a strong need for industry input since private operators will play a major role in future lunar and Mars missions.

What kind of ideas are these groups discussing? The topics include (i) the development of best practices, (ii) the need to provide for interoperability, (iii) the creation of a new registry of lunar activity, (iv) the allocation of priority rights, and (v) the establishment of “safety zones.” Of course, the full list of issues is longer.

That is the state of affairs at the moment. Are we headed in the right direction?

by Anne-Sophie Martin

Mining activities have a promising future in the new landscape of space activities. From a legal perspective, the United Nations (UN) Space Treaties remain silent concerning who would own the rights to minerals, gases and water found in outer space. So far, this has not been a problem because most missions have been conducted for scientific goals. However, the development of commercial space projects in the field need legal certainty to ensure their viability and to guarantee the rights of future explorers and investors that will extract and commercialize the resources.

At international level, The Hague International Space Resources Governance Working Group, established in 2016, has played a fundamental role by adopting, in November 2019, a set of Building Blocks including various provisions related to space resources activities. The Building Blocks make reference to and clarify some concepts of international space law, that are essentials to support and to coordinate the use of space resources that must be acceptable for all States interested in conducting such activity.

Meanwhile, some States have implemented their own national legislations, such as the United States in 2015, Luxembourg in 2017 and the United Arab Emirates in 2019. These domestic laws do not pave the way for any national appropriation by claim of sovereignty in outer space, including the Moon and other celestial bodies. Nevertheless, they clarify State’s national position on the status of the resources that can be extracted from those celestial bodies and in outer space. They also ensure that private operators can rest assured about their rights on resources they extract when it will be possible to undertake space mining programmes. Furthermore, the legislations establish the regulations for the authorization and the supervision of private space exploration missions, including both exploration and utilization of space resources.

The main objective is to facilitate commercial exploration and extraction of space resources in accordance with international law, in particular by taking into account the provisions of the 1967 Outer Space Treaty, namely the principle of freedom of exploration and use (Article I) and the principle of non-appropriation which confers to outer space the status of res communis omnium (Article II); as well as the Article 11.1 of the 1979 Moon Agreement which stresses that “the Moon and its natural resources are the common heritage of mankind”, and Article 11.5.

Space mining activities are expected to become viable in the near future with the progress of commercial business plans. In this context, the implementation of national legislation is an important step forward for regulating the activity. Nevertheless, the conditions for the exploitation of mineral resources will have to be determined through an appropriate international agreement discussed within multilateral forums.

by Dimitra Stefoudi

Space resource utilisation (SRU) is a multi-faceted issue that encompasses not only legal, but also technical, scientific and economic aspects. Therefore, resolving the emerging legal challenges calls for an interdisciplinary approach.

The Outer Space Treaty enables the lawful and sustainable conduct of space resource activities. The adoption of national laws by countries interested in promoting SRU and offering legal certainty to their national operators raises the question whether an international framework is necessary. Given the limited margin to divert from the provisions of the space treaties without violating them, both subsequent national laws and an international agreement can be expected to have similar content. However, the uniform interpretation and application of the space treaties can only be achieved on an international level. Seeing as the process for reaching consensus may be time-consuming, other initiatives are surfacing. The Hague International Space Resources Governance Working Group adopted a comprehensive set of Building Blocks for the Development of an International Framework on Space Resource Activities, followed by a Commentary. Some of these provisions found their way into the NASA Artemis Accords, whereas the Moon Village Association and the Outer Space Institute have also been dealing with specific aspects of SRU.

In the international scene, discussions on SRU are moving steadily. Within a few years, country positions have shifted from skepticism and doubt over the legality of SRU to the search for an appropriate governance regime. This is partly thanks to acknowledging SRU as an indispensable component of further space exploration. At the same time, some of the companies that instigated the topic of SRU went out of business, signifying that may not yet be as profitable an activity as initially envisioned, but also revealing the need for the creation of a suitable market. Currently, companies involved in SRU are either operating on a smaller scale, focusing on specific stages of the SRU cycle, or diversifying their activities with other space technologies and collaborations.

Back to space law, the topic of SRU has initiated a “battle” between the widely-ratified Outer Space Treaty and the less popular Moon Agreement. Does the Moon Agreement put a moratorium on SRU or does it encourage the adoption of a much-needed international framework? I support the latter, especially if more countries, particularly large spacefaring ones, ratify it.

by Mejía-Kaiser Martha

by Michelle Hanlon

In considering the concept of “space resources,” the Outer Space Treaty offers internal contradiction. First, Article I indicates that space, including the Moon and other celestial bodies, shall be free for exploration and use. However, Article II constrains use by stating that space, again, including the Moon and other celestial bodies, is not subject to national appropriation. Thus, while States and their nationals are free to use space, it cannot be subject to territorial or proprietary claims. While some argue that the non–appropriation principle precludes space resource utilization, this view is challenged by the Moon Agreement whose Parties clearly anticipated space resource utilization by agreeing to establish a regime to govern such use. Moreover, the no appropriation drafters of the Moon Agreement found the need to state explicitly, in Article XI(5) that natural resources “in place” may not become property of any State, nongovernmental entity or natural person – a distinction not made in the more widely-ratified Outer Space Treaty.

Thus, the legal concept of “property” bedevils engineers and entrepreneurs with grand ideas of using space resources: 1) in situ, to among other things build habitat and extract water for propellant and consumption; and 2) to supplant the Earth’s more meager supplies of rare elements. Yet it need not. Common sense suggests that while some may disagree with the Moon Agreement’s characterization of space as the “common heritage of humankind,” it is incontrovertible that a governance structure must be developed to support peaceful and sustainable space resource utilization. It is equally indisputable that this structure must be arrived at multilaterally. While ideally, such multilateral discussions would take place within the United Nations Committee on the Peaceful Uses of Outer Space, reality imposes two very real concerns: first, the consensus driven process take time we may not have; and second, the execution of space activities is no longer reserved for States – indeed many private entities are ahead of many States in terms of technological capability. It is vital to engage these nonstate parties in the discussion of resource utilization governance as they may well be the first to demonstrate mining capabilities. Equally important is the need to develop a flexible and adaptive regime recognizing, for example, that lunar resources, which are finite, require different considerations than asteroid resources.

This discussion must commence now. It’s time to put philosophical arguments aside and use common sense to support sustainable space resource utilization.

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The views and opinions expressed in each contribution are those of the respective authors and do not necessarily reflect the official position of the IISL.